119. An offence committed by aiding, abetting, counselling, procuring or inciting the commission of any offence listed in paragraphs 1 to 118 of this Schedule.

120. An offence committed by attempting or conspiring to commit any offence listed in paragraphs 1 to 118 of this Schedule.

Superseded offences

121. An offence superseded (whether directly or indirectly) by any offence listed in paragraphs 1 to 120 of this Schedule (and any qualification in relation to a listed offence applies to the superseded offence as it applies to the listed offence).

Combined offences

122. An offence which was charged, and the conviction for which was received, in conjunction with any offence listed in paragraphs 1 to 121 of this Schedule.

Corresponding offences elsewhere in the UK or abroad

123. An offence under the law of England and Wales or Northern Ireland, or any country or territory outside the United Kingdom, which corresponds to any offence listed in paragraphs 1 to 122 of this Schedule..
Amendment of the 2007 Act

Amendment of the 2007 Act 2

— The 2007 Act is amended as follows.

In section 46 (statement of scheme membership) subsection (3)(b) and the word “, and” immediately preceding it are repealed.

In section 49 (vetting information) for subsection (1)(c) substitute—

(c) information which—

(i) the chief officer of a relevant police force reasonably believes to be relevant in relation to the type of regulated work in relation to which the scheme member participates in the Scheme, and

(ii) in the chief officer’s opinion, ought to be included in the scheme member’s scheme record, and.

In section 51 (correction of inaccurate scheme record)—

in subsection (5) for the words “thinks that the information concerned might be” substitute “reasonably believes the information concerned to be”; and

after subsection (6) insert—

(7) This section does not apply to vetting information included in a scheme record which could be the subject of an application under section 52A(2)..

For section 52 (disclosure of scheme records) substitute—

52Disclosure of scheme records

(1) This section applies in relation to a scheme member’s scheme record if—

(a) disclosure conditions A to D are satisfied, and

(b) section 53 does not require Ministers to disclose the scheme member’s short scheme record.

(2) Subsection (3) applies where the scheme record does not include vetting information about a conviction for an offence listed in schedule 8B of the 1997 Act which is—

(a) a spent conviction, but

(b) not a protected conviction.

(3) Ministers must—

(a) disclose the scheme record, and

(b) send a copy of the scheme record to the scheme member.

(4) Subsections (5) to (9) apply where the scheme record includes vetting information about a conviction for an offence listed in schedule 8B of the 1997 Act which is—

(a) a spent conviction, but

(b) not a protected conviction.

(5) Ministers must send a copy of the scheme record to the scheme member (who may make an application to the sheriff under section 52A(2)).

(6) Subsection (7) applies where—

(a) the scheme member notifies Ministers before the end of the period mentioned in section 52A(3)(a) that the scheme member does not intend to make an application under section 52A(2), or

(b) that period expires without the scheme member having notified Ministers that the scheme member does intend to make such an application.

(a) the scheme member notifies Ministers before the end of the period mentioned in section 52A(3)(a) that the scheme member intends to make an application under section 52A(2), but

(b) either—

(i) the scheme member does not make such an application before the end of the period mentioned in section 52A(3)(b), or

(ii) the scheme member does make such an application but abandons it before it is determined by the sheriff.

(9) Ministers must not disclose the scheme record (and the request for disclosure of the record is to be treated as having been withdrawn).

52AReview of vetting information in scheme record

(1) This section applies where a scheme member receives a copy of the scheme member’s scheme record under section 52(5).

(2) The scheme member may apply to the sheriff for an order requiring Ministers to remove from the scheme record the vetting information referred to in section 52(4).

(3) An application under subsection (2)—

(a) may only be made if the scheme member notifies Ministers before the end of the period of 10 working days beginning with the date on which the scheme record was sent to the scheme member under section 52(5) of an intention to make the application,

(b) must be made before the end of the period of 6 months beginning with the date on which that notification is given, and

(c) must not relate to vetting information about a conviction which has previously been the subject of an application which—

(i) was refused under subsection (6)(b), and

(ii) related to the same type of regulated work.

(4) No finding of fact on which a conviction is based may be challenged in an application under subsection (2).

(5) Proceedings in an application under subsection (2) may take place in private if the sheriff considers it appropriate in all the circumstances.

(6) In determining an application under subsection (2) the sheriff must—

(a) if satisfied that the vetting information is not relevant in relation to a type of regulated work in relation to which the scheme member participates in the Scheme, allow the application,

(b) otherwise, refuse the application.

(7) The sheriff may allow the application in part where it relates to vetting information about two or more convictions.

(8) The decision of the sheriff on an application is final.

(9) Where the sheriff allows the application, the sheriff must order Ministers to remove the information from the scheme record in relation to a type of regulated work in relation to which the scheme member participates in the Scheme.

(10) On the determination of an application under subsection (2), Ministers must treat the disclosure request to which the application relates as if it had been made under section 52 on the day after the date on which the determination is made..

In section 53 (disclosure of short scheme records)—

in subsection (1) before “Ministers” insert “Subject to subsection (1A),”;

after subsection (1) insert—

(1A) But Ministers must treat the request as a request for a disclosure of the member’s scheme record under section 52 if the scheme record includes vetting information.;

in subsection (3) for paragraphs (b) to (e) substitute—

(b) says that no vetting information is included in the scheme member’s scheme record.; and

subsection (4) is repealed.

After section 57 (disclosure restrictions) insert—

57AMeaning of “conviction” and “protected conviction”

For the purposes of sections 52 and 52A—

“conviction” means a conviction within the meaning of the Rehabilitation of Offenders Act 1974, and “spent conviction” is to be construed in accordance with that Act,

“protected conviction” is to be construed in accordance with section 126ZA of the 1997 Act..

Transitional provision

Current applications for criminal record certificates and enhanced criminal record certificates under sections 113A, 113B, 114 and 116 of the 1997 Act

— Paragraph (2) of this article applies where the Scottish Ministers—

have, before the relevant date, received an application for—

a criminal record certificate under section 113A (criminal record certificates) or, as the case may be, section 114 (criminal record certificates: Crown employment) of the 1997 Act; or

an enhanced criminal record certificate under section 113B (enhanced criminal record certificates) or, as the case may be, section 116 (enhanced criminal record certificates: judicial appointments and Crown employment) of the 1997 Act; and

have not by that date issued the certificate.

An application referred to in paragraph (1) is to be treated for all purposes as having been received after the relevant date.

Paragraph (4) applies where before the relevant date the Scottish Ministers have issued—

a criminal record certificate under section 113A or, as the case may be, section 114 of the 1997 Act; or

an enhanced criminal record certificate under section 113B or, as the case may be, section 116 of the 1997 Act.

Section 116ZB(2) of the 1997 Act as inserted by article 3(4) of this Order does not apply in relation to the certificate.

Current applications for new certificates under section 117 of the 1997 Act

— Paragraph (2) of this article applies where the Scottish Ministers—

have, before the relevant date, received an application for a new criminal record certificate or, as the case may be, a new enhanced criminal record certificate under sections 113 to 116 of the 1997 Act in accordance with section 117 (disputes about accuracy of certificates) of the 1997 Act; and

have not by that date issued the new certificate.

An application referred to in paragraph (1) is to be treated for all purposes as having been received after the relevant date.

Current applications for registration under section 120 of the 1997 Act

— Paragraph (2) of this article applies where the Scottish Ministers—

have, before the relevant date, received an application for registration under section 120 (registered persons) of the 1997 Act; and

have not by that date included the person in the register kept under section 120 of the 1997 Act.

An application referred to in paragraph (1) is to be treated for all purposes as having been received after the relevant date.

Current disclosure requests under sections 52 and 53 of the 2007 Act

— Paragraph (2) of this article applies where the Scottish Ministers—

have, before the relevant date, received a request for—

disclosure of a scheme member’s scheme record under section 52 (disclosure of scheme records) of the 2007 Act; or

disclosure of a scheme member’s short scheme record under section 53 (disclosure of short scheme records) of the 2007 Act; and

have not by that date disclosed the scheme record or, as the case may be, short scheme record.

Any request for a disclosure referred to in paragraph (1)(a) is to be treated for all purposes as having been received after the relevant date.

Correction of scheme records under section 51 of the 2007 Act

— Paragraph (2) of this article applies where the Scottish Ministers—

have, before the relevant date, received—

a notification of changes under section 50 (duty to notify certain changes) of the 2007 Act; or

a request from a scheme member for correction of a scheme record under section 51 (correction of inaccurate scheme record) of the 2007 Act; and

have not by that date corrected the scheme record.

A notification or, as the case may be, a request referred to in paragraph (1) is to be treated for all purposes as having been received after the relevant date.

For the purposes of section 51, information is not to be regarded as inaccurate if it is information about a conviction which no longer falls within the definition of vetting information by virtue of the coming into force of this Order.

Waiver of fees for disclosure request under section 52 when deemed to be such under section 53(1A)

5A. The fee prescribed by regulation 3(3) is waived where—

(a) the scheme member has requested disclosure of the scheme member’s short scheme record under section 53 and paid the fee prescribed by regulation 3(4); and

(b) in accordance with section 53(1A), the request for the disclosure of the scheme member’s short scheme record is treated as a request for disclosure of the member’s scheme record as if the request had been made under section 52..

A member of the Scottish Government

St Andrew’s House,

Edinburgh

[ September 2015]

EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes amendments to the Police Act 1997 (“the 1997 Act”) and the Protection of Vulnerable Groups (Scotland) Act 2007 (“the 2007 Act”) to remove any potential incompatibility, arising from the disclosure of criminal convictions and cautions under the 1997 Act and the 2007 Act, with the European Convention on Human Rights (“the Convention”).

In the case of R (on the application of T and another) v Secretary of State for the Home Department and another [2014] UKSC 35 (judgment of 18th June 2014), the United Kingdom Supreme Court made a declaration of incompatibility under section 4 of the Human Rights Act 1998 that the provisions in sections 113A and 113B of the 1997 Act (as they applied in England and Wales) were incompatible with article 8 of the Convention because the requirements in relation to blanket disclosure of all spent convictions were not in accordance with the law. Similar provisions in sections 113A and 113B of the 1997 Act (as it applies in Scotland) may be incompatible with article 8. In addition, in section 49(1)(a) of the 2007 Act the definition of “vetting information” relies on section 113A(3)(a) of the 1997 Act and may also be incompatible with article 8.

Article 3 amends the 1997 Act. Section 113A of the 1997 Act is amended by article 3(2). Article 3(2)(c) amends the definition of relevant matter in section 113A(6) of the 1997 Act. “Conviction” means a conviction (including a spent conviction) within the meaning of the Rehabilitation of Offenders Act 1974. Paragraph (a) of the definition of “relevant matter” is amended so that it means a conviction but not a protected conviction and paragraph (b) is amended so that it includes all cautions which are not yet spent by virtue of schedule 3 of the Rehabilitation of Offenders Act 1974. Protected conviction is defined by reference to a new section 126ZA inserted into the 1997 Act by article 3(7) of the Order. Protected conviction is defined by reference to the lists of offences inserted into the 1997 Act as new schedules 8A (list of offences which must always be disclosed) and 8B (offences which are to be disclosed subject to rules). Both schedules are inserted by article 3(8) of the Order. A protected conviction is a conviction which is not listed in either schedule 8A or 8B, or is listed in schedule 8B but the conviction was given less than 15 years ago, or in the case of persons under 18 less than 7 years and 6 months, or the sentence received was either admonition or absolute discharge. Protected convictions and spent cautions will not be included in criminal record certificates or enhanced criminal record certificates. Section 49(1)(a) of the 2007 relies on the definition of “relevant matter” in section 113A(6) of the 1997 Act and therefore protected convictions and spent cautions will also not be within the definition of “vetting information” for the purposes of the 2007 Act.

Article 3(3)(b)(ii) of the Order amends section 113A(4) to strengthen the test which the chief officer of a police force must apply when the Scottish Ministers request Other Relevant Information (“ORI”). The chief officer must reasonably believe that information is relevant for the purpose for which an enhanced criminal record certificate is required and that the information ought to be disclosed. Article 3(3)(c) repeals subsection (5) which allowed the police to include ORI in an enhanced disclosure without providing it in the applicant’s copy of the certificate.

Article 3(4) inserts new sections 116ZA and 116ZB into the 1997 Act. The purpose of the new section 116ZA is to specify when a copy of a criminal record certificate or an enhanced criminal record certificate must be sent to the person who signed the statement which accompanied the application for it. Previous requirements to send it to this person at the same time as to the applicant are repealed (articles 3(2)(b) and 3(3)(e)). Where a certificate does not include information about a spent conviction listed in new schedule 8B which is not a protected conviction it continues to be sent at the same time to the applicant and the person who signed the statement accompanying the application. Where a certificate does include information about a spent conviction listed in new schedule 8B which is not a protected conviction, a copy of it is issued to the person who signed the statement if, within a period of 10 working days, the applicant either tells Disclosure Scotland to issue the copy or does not indicate to Disclosure Scotland that they intend to make an application to the sheriff under the new section 116ZB(2) for an order for a new certificate from which that information is removed. If the applicant tells Disclosure Scotland that they intend to make an application to the sheriff under the new section 116ZB(2), but does not make the application, Disclosure Scotland must not send a copy of the certificate to the person who signed the statement accompanying the application and the process ends.

The new section 116ZB sets out the procedure for an application to the sheriff to remove information from the certificate. When the appeal is determined, the sheriff must make an order requiring the issue of a new certificate as at the date of the order (new section 116ZB(9) and (10)). Where the sheriff is satisfied that the information is not relevant for the purpose for which a certificate was required, the sheriff must order that the information is removed from the new certificate (new section 116ZB(9)). Where the application is refused, the applicant cannot make a further application to the sheriff for removal of the same information which is included in the new certificate (new section 116ZB(10)(b)). Where a sheriff has ordered information to be removed from a certificate, then the information must not be included in any subsequent criminal record certificate or enhanced criminal record certificate if they are required for the same purpose for which the original certificate was required – new sections 113A(3A) and 113B(3A) as inserted by article 3(2)(a) and 3(3)(a) respectively.

Article 3(5)(a) amends section 117(4) of the 1997 Act in consequence of the change made to section 113B(4) in relation to ORI. Article 3(5)(b) inserts a new subsection (5) in section 117 to ensure that, where a certificate includes information about a spent conviction listed in new schedule 8B which is not a protected conviction, an individual cannot make an application under section 117 if the individual could make an application to the sheriff under the new section 116ZB(2) for a new certificate with the information removed.

Article 4 amends the 2007 Act. Article 4(2) repeals section 46(3(b) of the 2007 Act so that the Scottish Ministers are not required to issue a statement of scheme membership if the individual makes a disclosure request under sections 52 or 53 of the 2007 Act at the same time as they apply to join the PVG Scheme.

Article 4(3) amends subsection (1)(c) of the definition of “vetting information” in relation to ORI provided by the police. This is now aligned with the similar provision in section 113B(4) of the 1997 Act. The chief officer must reasonably believe that information is relevant in relation to the type of regulated work in relation to which the scheme member participates in the PVG Scheme and that the information ought to be disclosed.

Article 4(4)(a) amends section 51 of the 2007 Act in consequence of the change made to section 49(1)(c) in relation to ORI. Article 4(4)(b) inserts a new subsection (7) in section 51 to ensure that, where a scheme record includes information about a spent conviction listed in new schedule 8B to the 1997 Act which is not a protected conviction, an individual cannot request correction of a scheme record under section 51 if the individual could make an application to the sheriff under the new section 52A(2) to have the information removed from the scheme record.

Article 4(5) substitutes a new section 52 of the 2007 Act on disclosure of scheme records and inserts a new section 52A to provide for an application to the sheriff for removal of certain vetting information. The purpose of these new provisions is to specify when a scheme record is to be disclosed to the person who countersigned the disclosure request. Where a scheme record does not include information about a spent conviction listed in new schedule 8B to the 1997 Act which is not a protected conviction, it continues to be disclosed at the same time as the copy of it is sent to the scheme member. Where a scheme record includes information about a spent conviction listed in new schedule 8B to the 1997 Act which is not a protected conviction, it is to be disclosed if, within a period of 10 working days, the applicant either tells Disclosure Scotland to disclose it or does not indicate to Disclosure Scotland that they intend to make an application to the sheriff under the new section 52A(2) for removal of the information from the scheme record. If the scheme member tells Disclosure Scotland that they intend to make an application to the sheriff under the new section 52A(2), but does not make the application or the application is abandoned, the disclosure request is treated as having been withdrawn.

The new section 52A of the 2007 sets out the procedure for an application to the sheriff for removal of vetting information from a scheme record. Where the sheriff is satisfied that the information is not relevant for a type of work in relation to which the scheme member participates in the PVG Scheme, the sheriff must order that the Scottish Ministers to remove the information from the scheme record (new section 52A(6)(a)). When the appeal is determined the sheriff must make an order requiring the disclosure request to be treated as if it had been made on the day after the date of the order (new section 52A(10)) and the disclosure request will be treated again in accordance with section 52. Where the application is refused, the scheme member cannot make a further application to the sheriff for removal of the same information from the scheme record in relation to a disclosure request for the same type of regulated work (new section 52A(3)(c).

Article 4(6) amends section 53(3) of the 2007 Act to alter the content of a short scheme record. A short scheme record will include a scheme member’s statement of scheme membership and state that there is no vetting information on the scheme record. If a scheme member with vetting information included in their scheme record requests disclosure of a short scheme record, it will be treated under the new section 53(1A) as a disclosure request for a scheme record under section 52 of the 2007 Act.

Article 4(7) inserts a new section 57A into the 2007 Act to make provision for the definition of “conviction” and “protected conviction” for the purposes of sections 52 and 52A of the 2007 Act. “Conviction” has the same meaning as in the Rehabilitation of Offenders Act 1974, including a spent conviction. “Protected conviction” has the same meaning as in section 126ZA of the 1997 Act.

Articles 5 to 10 make transitional provision. Any applications for criminal record certificates and enhanced criminal record certificates under sections 113A, 113B, 114 and 116 of the 1997 Act (article 5(1) and (2)), applications for new certificates under section 117 of the 1997 Act (article 6), applications for registration under section 120 of the 1997 Act (article 7), disclosure requests under sections 52 and 53 of the 2007 Act (article 8), requests for correction of scheme records under section 51 of the 2007 Act (article 9(1) and (2)) and nominations of a countersignatory under regulation 4(1) or 4(2) of the Police Act 1997 (Criminal Records) (Registration) (Scotland) Regulations 2010 (article 10) which have been received prior to the coming into force of this Order and are not yet completed are to be treated as having been received after the coming into force of this Order (article 11). This means that the new definition of ‘relevant matter’ in section 113A(6) of the 1997 Act will apply when all of these applications or requests are completed. Article 5(3) and (4) provides that section 116ZB(2) does not apply to a criminal record certificate or an enhanced criminal record certificate issued prior to the coming into force of this Order so that there can be no application to the sheriff for a new certificate. Article 9(3) provides that, for the purposes of section 51 of the 2007 Act, information is not to be regarded as inaccurate if it is information about a conviction which no longer falls within the definition of “vetting information” by virtue of the coming into force of this Order.

Article 11 makes a consequential amendment to the Protection of Vulnerable Groups (Scotland) Act 2007 (Fees for Scheme Membership and Disclosure Requests) Regulations 2010 to provide for a fee waiver when a request for a disclosure of a short scheme record is treated as a request for a scheme record by virtue of the new section 53(1A) of the 2007 Act (as inserted by article 4(6)(b) of this Order).